Arkansas Secretary of State legal action questioned

A Freedom of Information Act (FOIA) lawsuit filed by blogger Matt Campbell took a twist this week that could spell trouble for Secretary of State Mark Martin.

Campbell filed a lawsuit in June to compel Martin’s office to comply with a document request. Martin’s office supplied some copies of the documents Campbell was seeking, but provided them in PDF format not in the original Word format in the request.

Martin, a Republican, and Campbell, who describes his blog as “unabashedly progressive, populist, and liberal” have a long history of antagonism regarding FOIA requests and ensuing spats over information disclosure.

A bigger problem could be a subsequent filing from Campbell this week alleging that Martin improperly hired outside legal counsel. Arkansas Code § 25-16-702 states:“The Attorney General shall be the attorney for all state officials, departments, institutions, and agencies. Whenever any officer or department, institution, or agency of the state needs the services of an attorney, the matter shall be certified to the Attorney General for attention.”

The statute allows state officials to use outside counsel only if the Attorney General has declined to provide the legal representation after being asked in writing and after approval from the governor to do so. The attorney general’s office has confirmed that they were not asked to provide the legal services in this matter. The governor’s office also confirmed that have not been asked nor have they approved any use of outside counsel for Secretary Martin.

In the FOIA lawsuit, Martin used an attorney from Quattlebaum, Grooms, Tull & Burrow law firm in Little Rock to defend the office in the lawsuit, and it is not the first time the office has used outside counsel.

According to documents obtained by Campbell, he estimated that Martin’s office has spent over $100,000 on outside attorney fees in the fiscal year 2013 alone. One attorney used by the office includes Republican gubernatorial candidate Asa Hutchinson who represented the Secretary of State in a lawsuit challenging state legislative redistricting and over the rejection of a ballot title seeking to legalize casinos.

Arkansas Code § 25-16-702 (d) states:"Any person violating the provisions of this section shall be subject to indictment and upon conviction fined in any sum not less than two hundred dollars ($200) nor more than two thousand dollars ($2,000) and, upon proper proceedings, removed from office.”

It appears the “proper proceedings” for removal in this section would refer to removal by impeachment or address by the governor under the Arkansas Constitution Section 15.

“When you think about this whole scheme, it makes perfect sense as to why a state official should be defended by the Attorney General,” writes Campbell on his blog. “A suit against a state official is not a suit against him personally, but a suit against the office he holds. So what is important is not that the official feel like he or she needs to ‘win’ the lawsuit, but that the State’s interests are protected. In this case, regardless of how Martin feels about the lawsuit or how badly he wants to be victorious, the State’s interests are case are seeing that the AFOIA is correctly interpreted and applied, that the AFOIA’s liberality of construction is maintained, and that no unnecessary costs are incurred by the State in defending against the lawsuit.”

Alex Reed, a spokesman for Martin, said it is office policy not to comment on pending litigation.